Supreme Court rules 8-1 against strip search of Arizona youth

Drugs are a serious problem in our schools, but in their zeal to tackle this seemingly insurmountable problem, sometimes school officials take missteps. At least, that is what the U. S. Supreme Court said today in a convincing fashion.

The decision was made concerning a case in an Arizona school where principals conducted a strip search of a girl suspected of having ibuprofen. Today, the Court ruled the search violated the 13-year-old girl's privacy. The decision, which was written by departing justice David Souter, came by an 8-1 margin, with only Justice Clarence Thomas ruling for the administrators.

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought for-bidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with whichthe right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.

I The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assis-tant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, MarissaGlines. Savana stated that none of the items in the plan-ner belonged to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflam-mation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Ro-mero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s back-pack, finding nothing.

At that point, Wilson instructed Romero to take Savanato the school nurse’s office to search her clothes for pills.Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt (both without pockets), which she wasthen asked to remove. Finally, Savana was told to pullher bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breastsand pelvic area to some degree. No pills were found.

Savana’s mother filed suit against Safford Unified School District #1, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s FourthAmendment rights. The individuals (hereinafter petition-ers) moved for summary judgment, raising a defense of qualified immunity. The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the NinthCircuit affirmed. 504 F. 3d 828 (2007).
A closely divided Circuit sitting en banc, reversed.

Justice Souter's opinion is not necessarily a defeat for school administrators. Much of the approach taken by the principal was legally correct:

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing.3 If a student is reasonably suspected of giving out contraband pills, she isreasonably suspected of carrying them on her person and in the carryall that has become an item of student uniformin most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searchesof outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, inher presence and in the relative privacy of Wilson’s office,was not excessively intrusive, any more than Romero’ssubsequent search of her outer clothing.

The strip search, however, was too much for the justices:

Here, the content of the suspicion failed to match thedegree of intrusion. Wilson knew beforehand that the pillswere prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil,or one Aleve.4 He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbersof pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “stu-dents . . . hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering ofcases of students with contraband in their underwear, id., at 8–9. But when the categorically extreme intrusivenessof a search down to the body of an adolescent requiressome justification in suspected facts, general background possibilities fall short; a reasonable search that extensivecalls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes inintimate places, and there is no evidence in the record of any general practice among Safford Middle School stu-dents of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even de-termined when Marissa had received the pills from Sa-vana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to thestudents from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

The justices said the school officials should receive qualified immunity for their role in the strip search.

Justice Clarence Thomas was clear about how he felt. The administrators should not be liable and the strip search was not unconstitutional:

Unlike the majority,however, I would hold that the search of Savana Redding did not violate the Fourth Amendment. The majorityimposes a vague and amorphous standard on school ad-ministrators. It also grants judges sweeping authority tosecond-guess the measures that these officials take tomaintain discipline in their schools and ensure the health and safety of the students in their charge. This deepintrusion into the administration of public schools exem-plifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary wasreluctant to interfere in the routine business of school administration, allowing schools and teachers to set andenforce rules and to maintain order.”

Thomas continued:

For this reason, school officials retain broad authority to protect students and preserve “order and a proper educational environment” under the Fourth Amendment. Id., at 339. This authority requires that school officials beable to engage in the “close supervision of schoolchildren, as well as . . . enforc[e] rules against conduct that would be perfectly permissible if undertaken by an adult.” Ibid. Seeking to reconcile the Fourth Amendment with this unique public school setting, the Court in T. L. O. held that a school search is “reasonable” if it is “‘justified at itsinception’” and “‘reasonably related in scope to the circumstances which justified the interference in the first place.’” Id., at 341–342 (quoting Terry v. Ohio, 392 U. S. 1, 20 (1968)). The search under review easily meets this standard.School officials had found alcohol and cigarettes in the girls’ bathroom duringthe first school dance of the year and noticed that a group of students including Redding and Marissa Glines smelledof alcohol. Ibid. Several weeks later, another student, Jordan Romero, reported that Redding had hosted a party before the dance where she served whiskey, vodka, and tequila. Id., at 8a, 11a. Romero had provided this reportto school officials as a result of a meeting his mother scheduled with the officials after Romero “became violent” and “sick to his stomach” one night and admitted that “he had taken some pills that he had got[ten] from a classmate.” Id., at 7a–8a, 10a–11a. At that meeting,Romero admitted that “certain students were bringingdrugs and weapons on campus.” Id., at 8a, 11a. One week later, Romero handed the assistant principal a white pillthat he said he had received from Glines. Id., at 11a. He reported “that a group of students [were] planning ontaking the pills at lunch.” Ibid.
School officials justifiably took quick action in light ofthe lunchtime deadline. The assistant principal took the pill to the school nurse who identified it as prescription-strength 400-mg Ibuprofen. Id., at 12a. A subsequentsearch of Glines and her belongings produced a razor blade, a Naproxen 200-mg pill, and several Ibuprofen 400-mg pills. Id., at 13a. When asked, Glines claimed that she had received the pills from Redding. Ibid. A search of Redding’s planner, which Glines had borrowed, then un-covered “several knives, several lighters, a cigarette, and a permanent marker.” Id., at 12a, 14a, 22a. Thus, as the majority acknowledges, ante, at 7, the totality of relevantcircumstances justified a search of Redding for pills.1
B The remaining question is whether the search was reasonable.

"

Thomas said school officials had every reason to believe that the strip search was reasonable and necessary:

The analysis of whether the scope of the search here waspermissible under that standard is straightforward.Indeed, the majority does not dispute that “general back-ground possibilities” establish that students conceal “con-traband in their underwear.” Ante, at 10. It acknowledgesthat school officials had reasonable suspicion to look inRedding’s backpack and outer clothing because if “Wilson’sreasonable suspicion of pill distribution were not under-stood to support searches of outer clothes and backpack, it would not justify any search worth making.” Ante, at 7. The majority nevertheless concludes that proceeding any further with the search was unreasonable. See ante, at 8– 10; see also ante, at 1 (GINSBURG, J., concurring in part and dissenting in part) (“Any reasonable search for thepills would have ended when inspection of Redding’sbackpack and jacket pockets yielded nothing”). But there is no support for this conclusion. The reasonable suspicionthat Redding possessed the pills for distribution purposesdid not dissipate simply because the search of her back-pack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look. See Ross, supra, at 820 (“Contraband goods rarely are strewn” about in plain view; “by their very nature suchgoods.

Thomas issued a sober warning to school officials that Redding would not have been the first person to hide contraband in her underwear "Nor will she be the last after today’sdecision, which announces the safest place to secrete contraband in school."